Monday, February 11, 2019

In the United States of America, more than two million people are currently incarcerated. Many prisons and jails offer vocational programs, which can and do have powerful effects on incarcerated people in their reentry into society outside the prison walls. Like any other students in a federally-funded educational program, incarcerated students are guaranteed protection against sex discrimination by Title IX. However, incarcerated students still experience significant barriers to these educational programs, in large part because they are not granted the rights due to them. Incarcerated students and their advocates can utilize Title IX as a fulcrum to fight for the education which is their legal right and which they deserve.

Incarcerated students have worked tirelessly to fight for recognition under Title IX. In Jeldness v. Pearce, incarcerated women sued the Oregon State Department of Corrections (OSDC), alleging sex discrimination. The OSDC’s women’s prison offered only two vocational courses: office administration and cosmetology. Two OSDC prisons for men offered twelve courses. Women were permitted access to these courses. However, OSDC cited “penological necessity” to force invasive searches on women attending courses at the men’s prison. These invasive searches frequently made women late to class, often so late that they could not attend class at all. Furthermore, men were paid for participating in certain classes. Women were not.

In 1994, the Ninth District Court of Appeals held in Jeldness that Title IX and its regulations protected incarcerated students in vocational programs. Although a prison may not be considered a traditional educational institution, the fact that a prison receives federal funding for such programs requires that prisons follow Title IX. The court held that “penological necessity” does not exempt prisons from compliance with Title IX. (Jeldness, 30 F.3d at 1229–1230) Further, the court held that paying men, but not women, for the same course constituted not only disparate impact but disparate treatment under Title IX.

Although courts and regulations have repeatedly and explicitly stated that Title IX protects incarcerated students, those students require further support to make their rights a reality. Incarcerated people face high rates of sexual violence not only by fellow incarcerated people but also by those who should be enforcing their rights: prison staff and administrators. The Survived and Punished Project has several resources for supporting incarcerated people. Organizations supporting survivors should explore offering Title IX workshops to prisons and uplifting incarcerated students’ voices in their advocacy. Individuals can support incarcerated students by becoming involved with and donating to projects like Survived and Punished.

The beauty of Title IX lies in its broad applicability. The character of the law affords students protection even at non-traditional campuses like prisons. Still, unlawful obstacles obstruct these students from their legal rights. Title IX, survivor, and anti-carceral advocates must consider how Title IX regulations, like those proposed by the Trump Administration, impact incarcerated students. If incarcerated students’ Title IX rights exist only in theory, incarcerated students do not have Title IX rights. It is only when incarcerated students can access their rights in reality that Title IX promises anything at all.

Olivia Ortiz is a leader of Legal Voice's Campus Sexual Assault Work Group. She is a first year JD student at the University of Washington School of Law and tweets at @ortizoliviaaImage credit: Simon Booth-Lucking | CC BY-NC 2.0

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